Case professor: Computer code is "free speech"

Posted at 7:44 PM, Mar 28, 2016
and last updated 2016-03-28 19:44:23-04

The Case Western Reserve University law professor who challenged the government over encrypted computer code and won may have set the most significant precedent for companies like Apple to use when challenged by the government. 

The FBI announced Monday that it had successfully cracked the San Bernardino shooting suspect’s iPhone through a mystery method. 

When Apple refused to write new software that would help the FBI break into the suspect’s iPhone, the FBI took the company to court. 

Had the case continued, Apple’s lawyers would have drawn from a legal precedent set in Cleveland nearly two decades ago. 

Former Professor Peter Junger challenged the U.S. Commerce Department in the 1999 case Junger v. Daley (6th Cir. 2000) arguing that computer code is “speech” and protected by the First Amendment.  

“He was just trying to teach a class,” explained Case Western Reserve University Professor Jonathan Entin who worked alongside Junger during the case. Junger retired in 1999 and passed away in 2006. 

Entin explained that Junger was trying to post source code on his website for his students to view, but was blocked by export restrictions enforced by the Dept. of Commerce. 

“Peter’s position all the way along was no, this is a way of communicating its a specialized form of communication,” he explained.

A district court ruled against Junger but an appeals court reversed that decision and ruled in favor of the Cleveland professor. 

Entin said that Junger’s case is still the most complete decision on the matter, and sets the stage for Apple or other tech companies that are challenged in the future to attempt to make a First Amendment objection to an investigator’s request to “unlock” a smartphone or other device. 

“Peter’s case does mean that the Constitution bares some importance in the Apple case,” he explained. “The question is how closely related are the two cases.” 

Apple’s lawyer’s had indicated that they planned to make a First Amendment objection before the case was discontinued.